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Decision of the European Ombudsman on complaint 3406/2006/JF against the European Personnel Selection Office

Available languages: en
  • Case: 3406/2006/JF
    Opened on 13 Dec 2006 - Decision on 03 Sep 2007
  • Institution(s) concerned: European Personnel Selection Office
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Fairness [Article 11 ECGAB],Requests for information [Article 22 ECGAB],Requests for public access to documents [Article 23 ECGAB]

Strasbourg, 3 September 2007

Dear Ms M.,

On 30 October 2006, you submitted a complaint against the European Personnel Selection Office ("EPSO"). Your complaint concerns Open Competition EPSO/AD/4/04 for Administrators (A*7) of Cypriot, Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovakian and Slovenian citizenship, in the field of European public administration(1).

On 13 December 2006, I forwarded the complaint to the Director of EPSO. On 14 March 2007, I received EPSO's opinion in French and on 16 April 2007, its translation into English, which I forwarded to you with an invitation to make observations. No observations have been received from you.

I am writing now to let you know the results of the inquiries that have been made.


THE COMPLAINT

According to the complainant, the facts are, in summary, as follows.

The complainant sat the written tests of Open Competition EPSO/AD/4/04 for Administrators (A*7) of Cypriot, Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovakian and Slovenian citizenship, in the field of European public administration. Despite her good results, EPSO informed her that her marks were not sufficiently high to admit her to the next stages of the competition. At that time, the complainant did not know that she could request that EPSO provide her with copies of her written tests and evaluation sheets.

On 30 October 2006, the complainant wrote to EPSO and, emphasising that there was no indication in the Notice of Competition that applicants could request information concerning their performance, requested a copy of her written tests and evaluation sheet, including the Selection Board's remarks on her written tests.

EPSO replied that "as stipulated in the guide for applicants, candidates are entitled to be sent, on request and within a month of the date of notification of their results, a copy of their test together with an evaluation sheet. As candidates were notified of the result of the written test on 16/02/2006, unfortunately, the deadline is over".

On the same day, the complainant lodged a complaint with the European Ombudsman.

The complainant alleged that EPSO's refusal to provide her with her written tests and evaluation sheet lacks a legal basis. In support of this allegation, the complainant argued that Notice of Competition EPSO/AD/4/04, which is the only legally binding document in relation to that competition, does not refer to the manner and modalities of requesting information.

The complainant claimed that EPSO should provide her with the documents identified above.

THE INQUIRY

The Ombudsman forwarded the complaint to EPSO and asked it to explain in its opinion (i) its position concerning the legal status of guides for applicants in open competitions organised by EPSO. In the same correspondence with EPSO, the Ombudsman recalled, first, the provisions of the fourth paragraph of "III. GENERAL PROCEDURE (...) 2. Tests (...)" of the Guide for Applicants (EPSO/AD/4/04; EPSO/AST/2/04; EPSO/AST/3/04)(2). The Ombudsman recalled, second, the Commission's commitment made in light of the special report of the European Ombudsman to the European Parliament following his own-initiative inquiry into the secrecy which formed part of the Commission's recruitment procedure(3). In particular, the Commission undertook to "(...) propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards"(4). The Ombudsman explained to EPSO that he understands that EPSO has adopted the Commission's above commitment as part of its own practice. The Ombudsman asked EPSO to explain (ii) how the provisions of the above-mentioned fourth paragraph of the Guide for Applicants complied with the Commission's above commitment to grant candidates access to their test papers.

EPSO's opinion

EPSO's opinion can be summarised as follows.

The complainant sat the written tests of Open Competition EPSO/AD/4/04(5), which was held to draw up a reserve list of administrators for citizens of the ten countries that acceded to the EU in 2004. The complainant, who is of Maltese nationality, chose the field of European public administration.

On 16 February 2006, EPSO informed the complainant of her results. The complainant had obtained the pass mark in each of these written tests but did not obtain the overall pass mark required to place her among the top 15 candidates from Malta.

On 30 October 2006, the complainant contacted EPSO by e-mail and requested a copy of her written tests and of the evaluation sheets containing the comments of the Selection Board. In its reply of the same date, EPSO recalled that the Guide for Applicants specified that candidates had one month from the date of notification of the results to make this request and explained that this deadline had passed.

EPSO pointed out that the first paragraph of the Guide for Applicants published at the time the competition was launched indicates the precise legal value of the text: "this guide is for information purposes only. The selection board is bound only by the text of the competition notice published in the OJ." This indication therefore defines as precisely as possible both the rules of the Notice of Competition, which the Selection Board must observe, and the candidates' duty of care. Accordingly, the Notice of Competition must not be confused with the purely procedural rules contained in the Guide for Applicants which is issued by EPSO in order to ensure the smooth and rapid management of the competition procedures. It follows therefore that only the text of the Notice of Competition can be used as a basis for making decisions on candidates and that the Guide for Applicants must serve as a supplement to facilitate administration.

EPSO emphasised that it was precisely in order to comply more fully with the undertaking given in 1999 following the Ombudsman's report, that it was subsequently decided to publish the rules of access in the Notice of Competition rather than in the Guide for Applicants, thereby providing greater protection for candidates' rights.

EPSO further drew the Ombudsman's attention to the need always to set limits to requests for copies of test papers. EPSO's necessarily limited resources must concentrate on managing the procedures in such a way that the deadlines set by the institutions for drawing up reserve lists are met. This is also demanded by the principle of good administration.

EPSO concluded that, in view of the above, and despite the fact that the deadline set for handling this type of request was strictly observed for the requests of all the other candidates in this competition, it was willing, in relation to this complaint, to supply the requested copies of the test papers. EPSO agreed to this exception to its treatment of such requests since, at the time of publication of competition EPSO/AD/4/04, the deadline had not been set in the legally binding text of the Notice of Competition. Along with its opinion, EPSO enclosed copies of the complainant's written tests and evaluation sheets.

The complainant's observations

EPSO's opinion as well as the copies of the complainant's written tests and evaluation sheets enclosed therein were forwarded to the complainant with an invitation to submit observations. No observations were received from the complainant.

THE DECISION

1 The alleged lack of legal basis

1.1 The complainant was not successful in the written tests for Open Competition EPSO/AD/4/04. On 30 October 2006, in reply to the complainant's request for her written tests and evaluation sheets, EPSO stated that according to the Guide for Applicants, "candidates are entitled to be sent [the requested documents] within a month of the date of notification of their results". Therefore, given that the complainant had been informed about her results on 16 February 2006, EPSO could not send her the requested documents because the deadline provided for in the Guide for Applicants had passed.

The complainant alleged that EPSO's refusal to provide her with her written tests and evaluation sheet lacked a legal basis. In support of this allegation the complainant argued that the Notice of Competition, which is the only legally binding document, did not refer to the manner and modalities of requesting information.

The complainant claimed that EPSO should provide her with the documents identified above.

1.2 EPSO stated, in summary, that (i) the legal status of the Guide for Applicants is defined in the Guide itself: "this guide is for information purposes only. The selection board is bound only by the text of the competition notice published in the OJ". Therefore, only the text of the Notice of Competition could be used as a basis for making decisions on candidates, while the Guide for Applicants must serve as supplement to facilitate organisation of tests. (ii) Considering that EPSO's limited resources are concentrated on managing procedures with a view to meeting the institutions' deadlines for drawing up reserve lists, it is always necessary to set limits to requests for copies of the test papers. The deadline set for handling such requests in the present competition had been strictly observed vis-à-vis other candidates. However, given that, at the time of the publication of Open Competition EPSO/AD/4/04, the above deadline had not been set in a legally binding document, that is, the Notice of Competition, EPSO agreed to send to the complainant copies of her written tests and the evaluation sheets filled by the Selection Board.

1.3 The Ombudsman first notes that the Guide for Applicants to Open Competitions EPSO/AD/4/04; EPSO/AST/2/04; and EPSO/AST/3/04 provides that "[a]fter the written tests, [applicants] may obtain, on request and within a month of the date of notification of their results, a copy of their written paper as well as a copy of their personal evaluation sheet including the selection board's remarks on their written test(s)."(6)

The Ombudsman notes that, although, in its opinion, EPSO did not take a position on this particular aspect of the Ombudsman's inquiry, it appears that it has adopted such a provision with a view to complying with the Ombudsman's recommendation, according to which, "the Commission should give candidates access to their own marked examination scripts upon request."(7) In this regard, the Ombudsman notes and welcomes EPSO's further initiative, undertaken with a view to better protecting candidates' rights, to publish in notices of competition, rather than in the Guides for Applicants, the rules regarding the right of candidates' to have access to information concerning them.

1.4 The Ombudsman points out, however, that principles of good administration require that officials take care that decisions which affect the rights or interests of individuals have a basis in law and that their content complies with the law(8). In this regard, the Ombudsman notes that, in the present case, the deadline for candidates to request access to their written tests and evaluation sheets had been set out in the Guide for Applicants, which was not, as EPSO has admitted, a legally binding document.

1.5 The Ombudsman notes however that, along with its opinion, EPSO provided the complainant with unmarked copies of her written tests and the evaluation sheets, "since, at the time of publication of competition EPSO/AD/4/04, the deadline had not been set in the legally binding text of the notice". The Ombudsman understands that EPSO was aware that, in accordance with the Ombudsman's procedure, these unmarked copies would be sent to the complainant in the course of the inquiry into the complaint. In light of the foregoing, the Ombudsman thus considers that the complainant's claim that EPSO should provide her with the documents identified above is satisfied and therefore takes the view that no further inquiries into this aspect of the complaint are justified.

1.6 The Ombudsman further notes however that, while refusing the complainant's request, EPSO also stated that it has observed the above-mentioned deadline in handling requests from other candidates in this competition that were similar to that of the complainant.

1.7 The Ombudsman notes that, although the scope of the present inquiry solely concerns EPSO's refusal of the complainant's request for access to her written tests and evaluation sheets and does not concern a request for access by any other candidate to information concerning him or her, or the modalities of such access in general, EPSO's above statement cannot go unremarked. The Ombudsman therefore makes a further remark in this regard below.

2 Conclusion

2.1 For the reasons given in point 1.5 above, the Ombudsman considers that no further inquiries into the present complaint are justified. The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

FURTHER REMARK

The Ombudsman finds it useful to make the following further remark:

Considering that the expiration of the deadline concerning the right of candidates to request access to their own written tests and evaluation sheets had been set out in the non-binding document "Guide for Applicants", EPSO could consider reviewing its refusals, if any, of requests for such access.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) OJ 2004 C 317 A/3.

(2) Available on EPSO's website (http://www.europa.eu/epso/on-line-applications/guide_en.htm).

(3) Special Report of the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedure, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/special/en/default.htm).

(4) See press release no 16/99 of the European Ombudsman of 15 December 1999.

(5) OJ 2004 C 317 A. A corrigendum thereto was published in OJ 2005 C 89 A.

(6) See paragraph 4 of III. GENERAL PROCEDURE (...) 2. Tests of the Guide for Applicants, which is available on EPSO's website (http://www.europa.eu/epso/on-line-applications/guide_en.htm).

(7) See press release no 16/99 of the European Ombudsman of 15 December 1999.

(8) Article 4 (Lawfulness) of the European Code of Good Administrative Behaviour provides:

"The official shall act according to law and apply the rules and procedures laid down in Community legislation. The official shall in particular take care that decisions which affect the rights or interests of individuals have a basis in law and that their content complies with the law."